Practice a More Perfect Law

Prosecutors and defense attorneys need to train on the wealthy and well-represented

Wes Denham is the co-author of "Arrest-Proof Yourself" and author of "Arrested, What to Do When Your Loved One's in Jail." You can reach him at wesdenham.com.

Cops, prosecutors and defense attorneys need wealthy and well-represented defendants for the same reason that surgical residents need indigent patients — for training. The doctors get the practice they need because there's no shortage of poor with end-stage diseases requiring heroic surgery and medicine.

Not so with criminal defendants who are rich and well-represented, the latter defined as people who are not wealthy but can be vigorously defended by corporate, government and union attorneys when arrested. To paraphrase St. Mark, "Ye have the poor always with you; but the rich and well-defended ye have not always."

Sometimes, ye have none.

It's a problem. Without vigorous challenges from moneyed defendants, the criminal justice system gets sloppier than a barfly conjugating verbs.

Prosecutors scarcely bother to prepare cases since, most of the time, they win. When a big case occurs, they can't bring on their A-game because they don't have one. In the murder trial of George Zimmerman, for example, state attorneys started off bad and got worse. They were overwhelmed by a $200,000 defense, multiple attorneys, oceans of motions and vigorous appeals. They couldn't argue the facts; they couldn't argue the law, so they fed emotional pabulum to the jury and got hammered.

Lack of wealthy defendants makes defense attorneys equally flaccid. With primarily poor clients, private attorneys plead defendants rather than go to trial. Most charge modest fees, which are all that can be had, then give modest efforts in return.

In Florida, judges will not allow a defense attorney to resign a case for non-payment. This means attorneys only work up to the fees paid because, like most people, they work as they're compensated. In my experience, many don't even request to see evidence and witness testimony against their clients because, if they saw it, they might have to do something about it, never to be paid for same. As for public defenders, don't get me started on those mopes.

Both prosecutors and defense attorneys can work for years without ever filing motions to challenge evidence, bills of particulars, multiple subpoenas of evidence, motions to draft jury instructions or to sever counts or defendants. They can't hire experts in jury selection and forensic evidence. They don't prep witnesses to prevent surprises under oath or hire detectives to pre-interview them and discover their tergiversations and their lies. Neither do they revisit the crime scene or hire professionals to prepare photographic and video presentations. Even if they file a non-routine motion now and then, they don't file multiple motions, one after the other — rat-a-tat-tat. That takes big cojones and big cash.

They never employ crafty operatives to sniff out phony academic degrees, disciplinary actions and political and sexual shenanigans among prosecutors, judges and cops. "Oppo" research has unearthed delicious dirt in many famous cases. In the rape trial of movie director Roman Polanski, a judge connived with the LA prosecutor and was fired from the bench. The first Zimmerman judge got snarky and got tossed. In the O.J. Simpson trial — Simpson is a retired NFL player who was charged with slitting the throats of his wife and her friend in 1994 — the lead detective lied under oath and was convicted of perjury. Most of the evidence went to jail with him.

With infrequent legal challenges, cops make bad arrests, screw up evidence and give careless testimony. Sometimes they cross the line and stage a crime scene or drop a throw-down gun. In our fair city, police employees have been busted for fraud and theft. Imagine what a defense attorney could do with that! Like boxers, cops need to spar and take legal shots to the chops to stay sharp and honest. When private detectives sift popo personnel records, they may find disciplinary actions. When they peruse incident reports, they may discover wife-beating, drunk driving and off-the-books businesses that had previously vanished under the big blue rug. If they catch a cop knocking boots with a busty blonde witness or getting a BJ at the back door, it's game over in court.

Our system has a fundamental flaw. Cops do not work for truth or justice. They work for the prosecution. They're powered by taxpayer cash that flows like a mighty river. Defendants usually have one private attorney (if they're lucky) funded by savings, if any, plus whatever Daddy and Mommy, Grammy and Gramps, and Unkie and Auntie can scrape up.

In the Netherlands, by contrast, cops work at the direction of judges who can order them to find evidence and witnesses who benefit both the defense and the prosecution. The difference is huge.

As long as the cops work for one side only, our criminal justice system needs wealthy defendants the way you and I need oxygen. Their money enables both defense attorneys and prosecutors to train on multiple motions, hearings and jury trials. When they fight, they improve. This benefits society. That defense expertise might even trickle down to you one day, when you're behind bars and gazing out of a concrete slit